American Nat. Ins. Co. v. Garcia, 8699.

• Decision Date: 16 December 1931
• Docket Number: No. 8699.,8699.
• Citation: 46 S.W.2d 1011
• Parties: AMERICAN NAT. INS. CO. v. GARCIA.
• Court: Texas Court of Appeals

Page 1011

46 S.W.2d 1011

AMERICAN NAT. INS. CO. v. GARCIA.

No. 8699.

Court of Civil Appeals of Texas. San Antonio.

December 16, 1931.

Rehearing Denied March 4, 1932.

Appeal from County Court at Law No. 2, Bexar County; George C. Clifton, Judge.

Action by Gertrudis Garcia against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

See, also, 32 S.W.(2d) 880.

Carter & Carter, of San Antonio, for appellant.

G. Woodson Morris, of San Antonio, for appellee.

FLY, C. J.

Appellee sought a judgment against appellant on a policy on the life of her husband, Anacleto G. Garcia, deceased, in the sum of $500. The jury returned a verdict for $375 as attorney's fees, and judgment for $935 was rendered by the county court in favor of appellee, being for the amount of the policy, penalties, and attorney's fees. The defense was that Anacleto G. Garcia was not dead. That issue was not submitted to the jury. The jury found that the deceased had gone to Mexico in 1922 and had not returned.

The court submitted to the jury three issues, first, as to whether Anacleto Garcia left San Antonio with the intention of establishing a home in Mexico; second, did he establish a home in Torreon, Mexico? and, third, what was a reasonable fee? The question as to the seven years' absence under circumstances sufficient to raise a presumption of death was not submitted to the jury, but it was assumed as a matter of law that the facts had raised the presumption of death.

Mere absence from a former residence for a period of years, or ten or twenty years, would not create the presumption of death. It was the common-law rule that an absence from a place of residence for seven years, without being heard from, will create a presumption of death, and that rule has been embodied in article 5541, Revised Statutes of Texas.

Garcia was in Torreon in the latter part of August or first part of September, 1922, after having been absent from his home in San Antonio over four months, when heard from in Torreon. The statute contemplates that there must be a continuous seven years' period of absence from the established home. No such period was established by the evidence, but, on the other hand, appellee admitted receiving a letter from her husband about four months after he left San Antonio, where he resided with his family. There are indications in the record that this suit was filed before the expiration of seven years from the...